The High Court and the Right of Police to Rifle Private Files

By Haynes JohnsonBy Haynes JohnsonJune 4, 1978

Four years have passed since Richard M. Nixon released the massive - although truncated, sanitized and officially "interpreted" - transcripts of his secret tape-recorded conversations in the White House. It was his greatest gamble. The master of deceit hoped, as The New Yorker commented at the time, "that we will draw such a powerful inference of his innocence from the fact that he is releasing the evidence that we will be blinded to the proof of guilt that the evidence contains."

Nixon himself, is going before the nation then to profess his innocence, expressed his extreme reluctance to release the material. People had spoken freely and candidly in his office, he said, never dreaming their words and thoughts would be exposed to the widest public scrutiny.

"I've been reluctant," Nixon went on, "because the principle of confidentiality is absolutely essential to the conduct of the presidency."

It was pressure both from the judicial process and the press that forced Nixon to make public that and other fatally damaging material. Now, in an act of historic irony, the Supreme Court has issued a ruling that would have made Nixon's Watergate problems meet had it come in time - and that also has struck a blow at the principle of confidentiality in the widest sense.

The court ruled that police can get warrants to make unannounced searches of places owned or occupied by persons believed to be innocent of criminal activities. It takes little imagination to realize how much judicial sanction would have been applied in the Nixon White House.

With a willing judge eager to curry favor from the highest office, an ambitious prosecutor and a compliant police force - all elements in the Watergate-related abuses of power - there would have been no need to break into the office of Daniel Ellsberg's psychiatrist. There would have been no problem in seizing the Pentagon Papers they were published in The New York Times and, later, The Washington Post and other newspapers.

Indeed, the Watergate break-in surgical gloves fumbling around in the darkened Watergate, the ransacking of files in the Democratic Party headquarters could have been accomplished in full daylight, with whatever time necessary - and all completely legally.

There's a further irony about this major court ruling. The case dates from the period of the greatest tension in the Nixon years, the time in 1971 when demonstraters were clashing with police and the White House fancied itself besieged by conspiracies and set in motion secret illegal action to counter them. Demonstrators had seized administrative offices at the Stanford University Hospital and then battled with police sent to the scene. A student newspaper published articles and photographs of the clash: the next day, the Santa Clara County district attorney's office obtained a court warrant to search the newspaper for negatives, film and pictures taken at the hospital.

Later that day, and without warning to the student paper staff, four police officers showed up at the news office. They searched the photo labs, filing cabinets, desks and even wastepaper baskets. In their search, the officers had the opportunity to read notes and correspondence.

In his dissent, Justice Potter Stewart notes:

"It is well to recall the actual circumstances of this case. The application for a warrant showed only that there was reason to believe that photographic evidence of assaults on the police would be found in the offices of The Stanford Daily. There was no emergency need to protect life or property by an immediate search. The evidence sought was not contraband, but material obtained by the Daily in the normal exercise of its journalistic function. Neither the Daily nor any member of its staff was suspected of criminal activity. And there was no showing the Daily would not respond to a subpoena commanding production of the photographs, or that for any reason a subpoena could not be obtained."

In fact, a raid had occurred. Now that type of police raid has recieved the highest legal sanction. Armed with their search warrant, the police are authorized to take any steps necessary - including breaking down doors and smashing locked desks and filing cabinets - to obtain information. They have the right to go through everything to carry out the objective of their search.

While this obviously holds critical significance for the operation of the press, the ruling goes far beyond the news business. It carries disturbing implications for all citizens not only in their offices but their homes. The confidentiality between doctor and patient, priest and Parishioner, are among the relationships jeopardized.

The words of Justice John paul Stevens, in another dissent, are worth pondering by every American:

"Just as the witnesses who participate in an investigation or a trial far outnumber the defendants, the persons who possess evidence that may help to identify an offender, or explain an aspect of a criminal transaction far outnumber those who have custody of weapons or plunder.

"Countless law-abiding citizens - doctors, lawyers, merchants, customers, bystanders - may have documents in their possession that relate to an ongoing criminal investigation. The consequences of subjecting this large category of persons to unannounced police searches are extremely serious. The . . . warrant procedure enables the prosecutor to obtain access to privileged documents that could not be examined if advance notice gave the custodian an opportunity to object. The search for the documents described in a warrant may involve the inspection of files containing other private matter. The dramatic character of a sudden earch may cause an entirely unjustified injury to the reputation of the persons searched."

The court takes the position that these concerns are overstated. "Properly administered," as the majority opinion written by Justice Byron R. White puts it, and with "overall reasonableness" the preconditions laid out for a warrant "should afford sufficent protection against the harms that are assertedly threatened by warrants for searching newspaper offices."

There lies the vital difference in opinion. No one who recalls the immediate poisonous past of presidential enemies' lists and pledges to "get" dissenters and critics can take such comfort in the reasonableness of the exercise of power.

But in case you've forgotten, glance through those Nixon White House transcripts again. There is, for instance, that memorable conversation between Nixon and his earnest aide, John Dean. They are talking about what will happen to their opponents once the Watergate problems are behind the president.

"I want the most comprehensive notes on all who tried to do us in," Nixon says. ". . . they are asking for it and they are going to get it. We have not used the power in this first four years as you know . . . We have not used the Bureau [the FBI] and we have not used the Justice Department but things are going to change now."